Summary 2014 WY 31

Summary of Decision February 27, 2014

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: IN THE MATTER OF THE WORKER’S COMPENSATION CLAIM OF: DON BIRCH v. STATE OF WYOMING ex rel. WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-13-0132

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sweetwater County, the Honorable Nena James, Judge

Representing Appellant: F. Gaston Gosar of F. Gaston Gosar, P.C., Pinedale, Wyoming

Representing Appellee: Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli, Assistant Attorney General

Date of Decision: February 27, 2014

Facts: Appellant Don Birch sought reimbursement for travel expenses related to chiropractic treatment he received at the Utah Spine and Disc Clinic in Murray, Utah from the Wyoming Division of Workers’ Compensation (Division). Mr. Birch lived in Daniel, Wyoming. The Division denied his request for reimbursement because traditional types of chiropractic care, manipulation and traction could have been obtained at a location in Wyoming closer to his home, and because cold laser therapy was considered experimental and was therefore not a covered treatment for which the Division would pay travel expenses.

Issues: 1) Are the hearing examiner’s findings sufficient to support his determinations (a) that travel expenses relating to cold laser therapy should not be reimbursed because that therapy is experimental and not compensable, and (b) that no travel expenses relating to any of the treatment received in Utah should be reimbursed because comparable conventional chiropractic treatment could have been obtained in Wyoming closer to Mr. Birch’s home? 2) Does substantial evidence support those findings? 3) As a matter of law, should the hearing examiner have awarded travel expenses relating to manual chiropractic manipulation and mechanical traction as if those services were provided in Rock Springs rather than Utah?

Holdings/Conclusion: The hearing examiner did not err in his interpretation of the applicable Wyoming statutes. His decision contained adequate findings of fact, and those findings were supported by substantial record evidence. We therefore affirm the district court’s order upholding the OAH decision.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2014 WY 30

Summary of Decision February 25, 2014

District Judge Donnell delivered the opinion for the Court. Affirmed.

Case Name: BRIAN J. NOEL v. THE STATE OF WYOMING

Docket Number: S-13-0059

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County the Honorable Thomas T.C. Campbell, Judge

Representing Appellant: Robert T. Moxley, Cheyenne, Wyoming.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.

Date of Decision: February 25, 2014

Facts: Pursuant to a plea agreement, Brian J. Noel pleaded guilty to two counts of attempted voluntary manslaughter. His pleas were accepted, and Noel was sentenced to two consecutive terms of incarceration of seventeen to twenty years. Noel now challenges on several grounds the plea agreement and the validity of his guilty pleas, as well as the sentences imposed.

Issues: In his original Brief of Appellant, Noel presented the following sole issue for review: 1. Did the trial court abuse its discretion by failing to consider mitigating sentencing evidence and by applying that evidence to the wrong crime, thereby depriving Brian Noel of his plea bargain?

However, Noel replaced his appellate counsel and in a subsequent Supplemental Brief of Appellant, he expanded his issues to include: 1. Can a plea agreement be valid under W.R.Cr.P. Rule 11(e), whereby a criminal defendant must “recommend” consecutive prison sentences, without any sentencing concession from the state? 2. Did a legally sufficient factual or legal basis support the trial court’s acceptance of guilty pleas to “attempted voluntary manslaughter,” and was that crime logically possible in this case? 3. Was the sentencing on reduced charges rendered unfair by the trial court’s restrictive interpretation of the plea agreement, by the state’s position that Brian Noel acted with the intent to kill, and by victim impact evidence that portrayed him as guilty of attempted murder? 4. Did the substitute sentencing court abuse its discretion or act contrary to law in the process of sentencing Mr. Noel to near-maximum, consecutive sentences?

Finally, in his Reply Brief of Appellant, apparently acting on the theory that “more is better,” Noel added even more issues, stating them as: 1. Was the plea-taking colloquy sufficient to assure that a “waiver of appeal” is enforceable? 2. Are the terms of a plea bargain and the trial court’s interpretation of the bargain subject to de novo review? 3. Does “plain error” doctrine allow the court to disregard constitutional defects in the acceptance below of Noel’s plea? 4. Does stare decisis foreclose Noel’s challenge to his conviction below for a logically impossible crime?

Holdings/Conclusion: For the reasons set forth herein, this Court concludes that the district court did not err in accepting Noel’s guilty pleas to two counts of attempted voluntary manslaughter in exchange for the plea agreement nor did the court err in sentencing Noel to two consecutive counts of seventeen to twenty years of incarceration thereon. Noel’s convictions and sentences are affirmed in all respects.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2014 WY 29

Summary of Decision February 25, 2014

Justice Davis delivered the opinion of the Court. Affirmed.

Case Name: THE ESTATE OF H. KENT DAHLKE, by and through its Personal Representative Susan M. Jubie, Appellant (Plaintiff), and THE ESTATE OF SARA WESTERBERG DAHLKE, by and through its Personal Representative Susan M. Jubie, and SUSAN M. JUBIE, individually, Appellants (Defendants) v. JAY H. DAHLKE, KURT M. DAHLKE, HEARTHSIDE CARE CENTER, UMPQUA HOMES FOR THE HANDICAPPED, and M. SCOTT McCOLLOCH, Appellees (Defendants)

Docket Number: S-13-0077

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Big Horn County, the Honorable John G. Fenn, Judge

Representing Appellants: Eldon E. Silverman, Esq., of Preeo Silverman Green & Egle, P.C., Denver, Colorado; Randy L. Royal, Esq., Greybull, Wyoming

Representing Appellees Jay H. Dahlke and Kurt M. Dahlke: Edward G. Luhm, Esq., Worland, Wyoming

Representing Appellees Umpqua Homes for the Handicapped and Hearthside Care Center: Laurence Stinson, Stinson Law Group, P.C., Cody, Wyoming

Representing M. Scott McColloch: No appearance

Date of Decision: February 25, 2014

Facts: The Estate of J. Kent Dahlke included a checking account he held jointly with his surviving wife Sara Dahlke. There were irregularities in the administration of the estate, including failure to assure that the heirs waived a hearing on a decree of distribution, and failure to advise Sara Dahlke of her statutory elective share. Sara served as the personal representative of Kent’s estate. After Sara died, her daughter Susan Jubie, acting as the subsequent personal representative of Kent’s estate, the personal representative of Sara’s estate, and individually, sought to set aside the decree of distribution of Kent’s estate five years after it was entered and its assets were distributed to the devisees. The district court denied the requested relief.

Issues: 1) Was the decree of distribution interlocutory and therefore subject to being set aside or revised because the personal representative was never discharged and the estate was never closed? 2) Was the decree of distribution void under Wyoming Rule of Civil Procedure 60(b)(4) due to irregularities in the probate proceeding, including failure to obtain waivers of hearing and failure to advise the surviving spouse of a statutory right to an elective share? 3) Did the district court err in failing to set the decree aside because of fraud on the court or exceptional circumstances under Wyoming Rule of Civil Procedure 60(b)(6)? 4) Did the existence of a possible malpractice claim against the estate’s attorney prevent the district court from setting the decree of distribution aside?

Holdings/Conclusion: Our system of justice is generally adversarial in nature, and procedural errors tend to be soon discovered due to the parties’ enlightened self-interests. Probate administration, on the other hand, is often not adversarial, and the probate court therefore has a significant role in assuring that the decedent’s intent or the requirements of our statute of descent and distribution are carried out efficiently, honestly, and with appropriate notice. It is difficult for a judge to anticipate unfairness or detect procedural errors when no one complains about a proposed action. The probate process went awry in this case, but the law governing finality of judgments requires that the decree of distribution stand. We therefore affirm the district court’s summary judgment in favor of Appellees.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2014 WY 28

Summary of Decision February 25, 2014

Justice Hill delivered the opinion of the Court. Reversed and Remanded.

Case Name: IN THE MATTER OF THE WRONGFUL DEATH OF DANIEL P. SORAN, II, DAN SORAN, PERSONAL REPRESENTATIVE: DAN SORAN, LYNETTE SORAN and SARAH SORAN v. LAURA SORAN

Docket Number: S-13-0098

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, the Honorable Thomas T.C. Campbell, Judge

Representing Appellants: Thomas B. Jubin of Jubin & Zerga, LLC, Cheyenne, WY, and Michael L. Weiner of Yaeger, Jungbauer & Barczak, PLC, Saint Paul, MN. Argument by Mr. Jubin.

Representing Appellee: Scott W. Meier, Lucas Buckley, and Traci L. Lacock of Hathaway & Kunz, P.C., Cheyenne, WY. Argument by Mr. Meier.

Date of Decision: February 25, 2014

Facts: This case involves a wrongful death claim brought on behalf of the beneficiaries of Daniel P. Soran, II (Decedent). Decedent’s father, in his capacity as personal representative, settled the wrongful death claim with the applicable liability insurance companies for $400,000. Thereafter, a dispute arose between the beneficiaries as to how the settlement proceeds should be distributed, with Decedent’s allegedly estranged wife, Laura Soran, on one side, and Decedent’s parents and sister on the other side. Following a bench trial on distribution of the damages, the district court awarded Laura Soran 75% of the settlement proceeds and divided the remainder of the proceeds among Decedent’s parents and sister. Decedent’s parents and sister appeal, contending that the court erred in imposing on them the burden to disprove Laura Soran’s damages and that the court’s distribution was clearly erroneous in light of the evidence.

Issues: 1) The trial court erred as a matter of law, in imposing the burden upon other beneficiaries to disprove the estranged wife’s claim to wrongful death damages. 2) When distributing settlement proceeds to wrongful death beneficiaries, the trial court’s decision to award 75% of these proceeds to the estranged wife was clearly erroneous where the evidence proved a clear and unquestionable mutual intent to end the marriage, and where the estranged wife failed to prove the loss of a future relationship with the decedent.

Holdings/Conclusion: The district court’s distribution order was clearly erroneous in that it misapplied the burden of proof and improperly presumed damages in favor of Decedent’s wife. We reverse and remand for proceedings consistent our direction herein.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2014 WY 27

Summary of Decision February 24, 2014

Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: RONALD D. ALLABACK v. THE STATE OF WYOMING

Docket Number: S-12-0242

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County the Honorable Peter G. Arnold, Judge

Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee: Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey Pope, Assistant Attorney General.

Date of Decision: February 24, 2014

Facts: Ronald D. Allaback pleaded guilty to three counts of identity theft in violation of Wyo. Stat. Ann. § 6-3-901(a)(c)(ii) (LexisNexis 2013). The district court imposed a sentence of incarceration which it suspended in favor of eight years probation. The district court subsequently revoked and reinstated Mr. Allaback’s probation three different times. When the State filed a fourth petition to revoke, the district court granted the petition and imposed the underlying sentence of five to nine years incarceration. Mr. Allaback did not timely appeal from the order revoking probation and imposing sentence. After he filed a petition for writ of certiorari asking this Court to restore his appeal, we remanded to the district court for a hearing on the issue of whether defense counsel was ineffective. The district court held counsel was ineffective in failing to follow Mr. Allaback’s instruction to file an appeal.

Issues: Mr. Allaback presents the following issue for this Court’s determination: Did the trial court abuse its discretion by revoking his probation, considering that he did not receive proper notice of the charges against him and that he had previously been sanctioned for two of the violations?

Holdings/Conclusion: The evidence supported the district court’s decision to revoke Mr. Allaback’s probation and the decision was not an abuse of discretion. Affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2014 WY 26

Summary of Decision February 21, 2014

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: LEWIS HOLDING COMPANY, INC., a Wyoming Corporation v. FORSBERG ENGERMAN COMPANY, a Colorado Corporation, NTA, INC., an Indiana Corporation, and LEXINGTON INSURANCE COMPANY

Docket Number: S-13-0093

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sheridan County the Honorable John G. Fenn, Judge

Representing Appellant: James P. Castberg, Castberg Law Office, Sheridan, Wyoming.

Representing Appellee, Forsberg Engerman Company: Weston W. Reeves and Anna M. Reeves Olson, Park Street Law Office, Casper, Wyoming. Argument by Ms. Olson.

Representing Appellees, NTA, Inc. and Lexington Insurance Company: Jason A. Neville and David E. Shields, Williams, Porter, Day & Neville, P.C. Casper, Wyoming. Argument by Mr. Shields.

Date of Decision: February 21, 2014

Facts: In this insurance coverage dispute, the district court granted summary judgment in favor of defendants Lexington Insurance Company, NTA, Inc., and Forsberg Engerman Company, and against plaintiff Lewis Holding Company, Inc. Lewis Holding challenges that ruling on appeal.

Issues: Lewis Holding presents two issues: 1. Did the trial court err in granting the defendants’ motions for summary judgment on the issue of estoppel? 2. Did the trial court err in granting the defendants’ motions for summary judgment on the issue of breach of the covenant of good faith and fair dealing?

Holdings/Conclusion: In the current case, the insurance agreement between Lewis Holding and Lexington plainly and unambiguously excludes coverage for damages due to mechanical failure. The doctrine of estoppel cannot be used to extend the insurance coverage to include risks that are expressly excluded by the policy. The district court did not err in granting summary judgment in favor of Lexington and NTA. We agree with Forsberg’s assertion. Forsberg was the agent who helped Lewis Holding obtain its insurance, but it is not a party to that insurance policy. Lewis Holding does not contend that Forsberg agreed to assume liability under the insurance policy, and it offers no other factual basis or legal theory for holding Forsberg liable under the insurance policy. The district court correctly granted Forsberg’s motion for summary judgment. We have previously concluded that Lexington, NTA, and Forsberg were not liable to Lewis Holding under the insurance policy. This conclusion also establishes that these parties had reasonable bases for denying Lewis Holding’s claim. We therefore affirm the district court’s grant of summary judgment in their favor on Lewis Holding’s claim for breach of the covenant of good faith and fair dealing.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2014 WY 25

Summary of Decision February 21, 2014

Justice Burke delivered the opinion of the Court. Affirmed.

Case Name: DEANA V. LANDWEHR, a/k/a DEANA STREUBING v. STATE OF WYOMING, ex rel., WYOMING WORKERS’ SAFETY AND COMPENSATION DIVISION

Docket Number: S-13-0139

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, the Honorable Thomas T.C. Campbell, Judge

Representing Appellant: Dana J. Lent, Attorney at Law, Torrington, Wyoming.

Representing Appellee: Peter K. Michael, Attorney General; John D. Rossetti, Deputy Attorney General; Michael J. Finn, Senior Assistant Attorney General; Brenda S. Yamaji, Assistant Attorney General.

Date of Decision: February 21, 2014

Facts: The Wyoming Workers’ Safety and Compensation Division awarded benefits to Appellant, Deana Landwehr, after she experienced a workplace injury to her back in 1999. In 2008, Ms. Landwehr experienced a second workplace injury while employed in Nebraska. In 2010, Ms. Landwehr sought payment for prescription medication that she claimed was necessary treatment relating to her 1999 workplace injury. The Division denied the claim. Ms. Landwehr requested a contested case hearing, and the hearing examiner upheld the Division’s denial of benefits. Ms. Landwehr appealed to the district court, which affirmed the hearing examiner’s order. She challenges the district court’s decision in this appeal. We affirm.

Issue: Was the hearing examiner’s determination that Appellant failed to satisfy her burden of proof unsupported by substantial evidence in the record as a whole?

Holdings/Conclusion: In sum, the evidence in this case does not support Ms. Landwehr’s claim that the headaches she experienced in 2010 were related to the initial workplace injury to her mid-back. During the 11 years that elapsed since her initial workplace injury, Ms. Landwehr received at least four MRI’s, all of which were “unremarkable” and returned no objective evidence of a causal connection between her mid-thoracic strain and her claimed symptoms. Also during this time, Ms. Landwehr was diagnosed with carpal tunnel syndrome and fibromyalgia, both of which provide possible explanations for her upper-extremity symptoms, and there is no evidence in the record to suggest that either of these diseases was related to the initial workplace injury. Most importantly, Dr. Hopfensperger’s testimony that the cause of Ms. Landwehr’s headaches was “idiopathic” and “occult” provides absolutely no basis to conclude that her headaches were, more probably than not, the result of her initial back injury in 1999, as opposed to the 2008 workplace injury to her head, for which she received a worker’s compensation settlement in Nebraska. We find substantial evidence to support the hearing examiner’s conclusion that there was no causal connection between Ms. Landwehr’s headaches and her 1999 workplace injury.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2014 WY 24

Summary of decision February 20, 2014

ORDER REVERSING CONVICTIONS

Case name: BLAS PEDRAZA, JR. v. THE STATE OF WYOMING

Docket Number: S-13-0254, S-13-0255

URL: http://www.courts.state.wy.us/Opinions.aspx

Date of Decision: February 20, 2014

This matter came before the Court upon a “Stipulated Motion to Reverse and Remand,” e-filed herein January 28, 2014. After a careful review of the motion and the file, this Court finds as follows. In two dockets, Appellant pled guilty or “no contest” to nine felonies: two counts of sexual abuse of a minor in the first degree and seven counts of sexual abuse of a minor in the second degree. According to Appellant’s briefs, prior to entering his pleas, the district court advised, in both cases, as follows: “as a result of these being felonies, if you were…. convicted, plead guilty to them, you could lose some of your civil rights, the right to vote, your right to hold public office, and your right to bear firearms by federal law.” In his briefs, Appellant contends that his convictions should be reversed because he was not given the firearms advisement required by Wyo. Stat. Ann. § 7-11-507. The State of Wyoming agrees.
This Court agrees as well. While the district court’s firearms advisements likely satisfied § 7-11-507(a)(i), the advisement did not satisfy § 7-11-507(a)(ii). Here is what that statute requires:

§ 7-11-507. Advisement of loss of firearms rights upon conviction.

(a) No judgment of conviction shall be entered upon a plea of guilty or nolo contendere to any charge which may result in the disqualification of the defendant to possess firearms pursuant to the provisions of 18 U.S.C. §§ 922(g)(1), (9) and 924(a)(2) or other federal law unless the defendant was advised in open court by the judge:
(i) Of the collateral consequences that may arise from that conviction pursuant to the provisions of 18 U.S.C. §§ 921(a)(33), 922(g)(1), (9) and 924(a)(2); and
(ii) That if the defendant is a peace officer, member of the armed forces, hunting guide, security guard or engaged in any other profession or occupation requiring the carrying or possession of a firearm, that he may now, or in the future, lose the right to engage in that profession or occupation should he be convicted.
As this Court has noted, “the legislature directed that no judgment of conviction be entered without advisement as to the potential loss of firearms privileges and its effect on employment in occupations requiring an employee to possess a gun.” Balderson v. State, 2013 WY 107, ¶ 21, 309 P.3d 809 (Wyo. 2013) (emphasis supplied). Therefore, based on Balderson, Starrett v. State, 2012 WY 133, 286 P.3d 1033 (Wyo. 2012) and Cobb v. State, 2013 WY 142, 312 P.3d 827 (Wyo. 2013), this Court must reverse Appellant’s convictions. It is, therefore,

ORDERED that the “Judgment and Sentence” entered on August 30, 2013, in Washakie County District Court Criminal No. 2012-0025, be, and hereby is, reversed and vacated; and it is further

ORDERED that the “Judgment and Sentence” entered on August 30, 2013, in Washakie County District Court, Criminal No. 2013-0007, be, and hereby is, reversed and vacated. These matters are remanded to the district court for proceedings consistent with this order.

DATED this 20th day of February, 2014.

BY THE COURT:
/s/
MARILYN S. KITE
Chief Justice

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2014 WY 23

Summary of Decision February 20, 2014

Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: DANIEL L. STEVENS v. KACIE J. STEVENS

Docket Number: S-13-0125

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Park County the Honorable Steven R. Cranfill, Judge

Representing Appellant: John P. Worrall of Worrall & Greear, P.C., Worland, WY

Representing Appellee: George Simonton, Cody, WY

Date of Decision: February 20, 2014

Facts: In his appeal from a divorce decree, Father challenges the district court’s property division, alimony award, child support determination, and custody award.

Issues: Father states the following five issues for our consideration: 1.The District Court abused its discretion in the division of property between the parties in this matter. 2. The District Court abused its discretion in determining to award alimony to the Appellee. 3. The District Court abused its discretion in failing to determine that the Appellee was voluntarily under employed (sic) as a hostess at a local restaurant rather than at her chosen profession as a Certified Public Accountant and in other ways in calculating child support. 4. The District Court abused its discretion in determining the custody and visitation of the minor children in this matter. 5. The District Court abused its discretion in reaching its decision in this matter as a whole.

Holdings/Conclusion: There was no singular, or cumulative, abuse of discretion by the district court. The property division stands as does the award of alimony to Mother. Custody and child support both track the statutory guidelines provided. Any deficiencies in the initial decision letter were remedied by follow up addendums and the final divorce decree. The trial court’s decision, in all aspects, is affirmed.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2014 WY 22

Summary of Order February 19, 2014

ORDER SUSPENDING ATTORNEY FROM PRACTICE OF LAW AND ASSESSING COSTS

Case Name: BOARD OF PROFESSIONAL RESPONSIBILITY, WYOMING STATE BAR v. STACY E. CASPER, WSB No. 6 3431

Docket Number: D-14-0003

URL: http://www.courts.state.wy.us/Opinions.aspx

Date of Order: February 19, 2014

[¶1] This matter comes before the Court upon a Report and Recommendation for 30 Day Suspension stipulated to by Petitioner, the Board of Professional Responsibility of the Wyoming State Bar (the Board); and Respondent, Stacy E. Casper. Although Respondent has stipulated to the violation and discipline, and the Court accepts the stipulated recommendation, the Court writes this opinion rather than simply adopting the Board’s recommendation because these are matters of considerable importance to members of the Wyoming State Bar.

[¶2] This is an attorney discipline case that arose out of Respondent’s billing excessive legal fees and her subsequent improper attempts to collect those fees.

[¶26] IT IS, THEREFORE, HEREBY ORDERED:

1. That the Report and Recommendation for 30 Day Suspension filed by the Board of Professional Responsibility of the Wyoming State Bar on January 10, 2014, is hereby, approved, confirmed, and adopted by this Court as modified above; and

2. That Stacy E. Casper be suspended from the practice of law for a period of thirty days, commencing August 1, 2014; and

3. That Stacy E. Casper reimburse her client’s ex-husband for the attorneys’ fees and costs he incurred as a result of Respondent’s improper filing of the Lien Statement; and

4. That Stacy E. Casper pay an administrative fee of $500 and costs of this disciplinary proceeding to the Wyoming State Bar on or before September 1, 2014; and

5. That, in conjunction with the Wyoming State Bar, Stacy E. Casper design and teach a Wyoming CLE program on proper billing practices and techniques; and

6. That the press release stipulated to by the parties shall be issued by the Wyoming State Bar.




Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2014 WY 21

Summary of Decision February 11, 2014

District Judge Lavery delivered the opinion for the Court. Affirmed.

Case Name: DELBERT R. MCDOWELL v. THE STATE OF WYOMING

Docket Number: S-13-0058

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County the Honorable Michael Davis, Judge

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel. Argument by Mr. Morgan.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Darrell D. Jackson, Director, and David E. Singleton, Student Intern, University of Wyoming, College of Law, Prosecution Assistance Program. Argument by Mr. Singleton.

Date of Decision: February 11, 2014

Facts: Delbert McDowell appeals his convictions on six counts of sexual abuse of a minor in the third degree under Wyo. Stat. Ann. § 6-2-316(a)(i) and one count of sexual abuse of a minor in the second degree under Wyo. Stat. Ann. § 6-2-315(a)(i). He claims the district court erred in holding that testimony he intended to rebut the State’s W.R.E. 404(b) evidence was evidence of his character which opened the door to rebuttal by the State pursuant to W.R.E. 404(a)(1) and W.R.E. 405(a).

Issues: McDowell presents one issue for review by this Court: Did the trial court abuse its discretion when it ruled that defense counsel opened the door and allowed the State to introduce additional 404(b) evidence?

The State rephrases the same issue: Defendants can offer evidence about relevant character traits in their case-in-chief; but on cross-examination, a prosecutor may inquire into relevant specific instances of the defendant’s conduct to rebut the offered character testimony. Here, McDowell called a witness who opined about his good character when interacting with children. On cross-examination, the prosecutor asked the witness if she knew McDowell had two misdemeanor convictions for sexually assaulting children. Did the district court abuse its discretion when it allowed these questions?

Holdings/Conclusion: The district court did not abuse its discretion when it ruled that McDowell opened the door to character evidence under Rule 404(a)(1) and Rule 405(a), and the State’s presentation of rebuttal character evidence did not violate his constitutional right to present a defense. Affirmed.
Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2014 WY 20

Summary of Decision February 11, 2014

Chief Justice Kite delivered the opinion of the Court. Reversed and Remanded.

Case Name: MARGARET REYNOLDS and DAVID REYNOLDS v. JEAN B. MOORE, JUDITH JAEGER and WILFORD JAEGER

Docket Number: S-13-0087

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Teton County, the Honorable Timothy C. Day and the Honorable Marvin L. Tyler, Judges

Representing Appellants: Alan C. Stephens of Thomsen Stephens Law Offices, Idaho Falls, Idaho; John D. Bowers of the Bowers Law Firm, Afton, Wyoming. Argument by Mr. Stephens.

Representing Appellee Jean B. Moore: Julie Nye Tiedeken and Sean W. Scoggin of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming. Argument by Mr. Scoggin.

Representing Appellees Judith Jaeger and Wilford Jaeger: Scott Paul Landry of Pratt & Landry, LLP, Lone Tree, Colorado.

Date of Decision: February 11, 2014

Facts: The district court dismissed Margaret and David Reynolds’ negligence claims against Ms. Moore and their respondeat superior claims against her employers, Judith and Wilford Jaeger.

Issues: 1) Did the district court err when it found that Defendant Moore was not sufficiently served for the court to obtain jurisdiction? 2) Did the district court err when it held that Moore sufficiently plead[ed] the affirmative defenses of insufficiency of process and insufficiency of service under Wyo. R. Civ.P. 12(b)(4) and (b)(5)? 3) Did the district court err when it dismissed Plaintiffs’ complaint against the Jaegers because Plaintiffs’ claims against the Jaegers were derivative of the claims asserted against Moore?

Holdings/Conclusion: We conclude the district court erred by dismissing the Reynolds’ complaint. The mistake in the original summons served upon Ms. Moore was not fatal, and the district court obtained jurisdiction over her prior to the expiration of the statute of limitations. Given the action against Ms. Moore was valid, the district court erred in dismissing the Reynolds’ claims against the Jaegers because they were derivative and could not be maintained in their employee’s absence. We reverse and remand.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2014 WY 19

Summary of decision February 6, 2013

ORDER OF PUBLIC CENSURE

Case name: BOARD OF PROFFESSIONAL RESPONSIBILILTY, WYOMING STATE BAR v. SANDRA L. BAKER, WSB No. 6-4219

Docket Number: D-14-0004

URL: http://www.courts.state.wy.us/Opinions.aspx

Date of Decision: February 6, 2014

This matter came before the Court upon a “Report and Recommendation for Public Censure,” filed herein January 23, 2014, by the Board of Professional Responsibility for the Wyoming State Bar, pursuant to Section 16 of the Disciplinary Code for the Wyoming State Bar (stipulated discipline). The Court, after a careful review of the Board of Professional Responsibility’s Report and Recommendation and the file, finds that the Report and Recommendation should be approved, confirmed and adopted by the Court, and that Respondent Sandra L. Baker should be publicly censured for her conduct. It is, therefore,

ADJUDGED AND ORDERED that the Board of Professional Responsibility’s Report and Recommendation for Public Censure, which is attached hereto and incorporated herein, shall be, and the same hereby is, approved, confirmed, and adopted by this Court; and it is further

ADJUDGED AND ORDERED that Sandra L. Baker is hereby publicly censured for her conduct, which is described in the Report and Recommendation for Public Censure. This public censure shall include issuance of a press release consistent with the one proposed in the Report and Recommendation for Public Censure; and it is further

ORDERED that, pursuant to Section 26 of the Disciplinary Code for the Wyoming State Bar, Ms. Baker shall reimburse the Wyoming State Bar the amount of $50.00, representing the costs incurred in handling this matter, as well as pay the administrative fee of $500.00. Ms. Baker shall pay the total amount of $550.00 to the Clerk of the Board of Professional Responsibility on or before March 31, 2014; and it is further

ORDERED that the Clerk of this Court shall docket this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, as a matter coming regularly before this Court as a public record; and it is further

ORDERED that, pursuant to Section 4(a)(iv) of the Disciplinary Code for the Wyoming State Bar, this Order of Public Censure, along with the incorporated Report and Recommendation for Public Censure, shall be published in the Wyoming Reporter and the Pacific Reporter; and it is further

ORDERED that the Clerk of this Court cause a copy of this Order of Public Censure to be served upon Respondent Sandra L. Baker.

DATED this 6th day of February, 2014.

BY THE COURT:

/s/

MARILYN S. KITE
Chief Justice

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2014 WY 18

Summary of Decision February 4, 2014

Justice Burke delivered the opinion of the Court. Affirmed.

Case Name: JAMES C. McCALLIE v. STATE OF WYOMING, ex rel., DEPARTMENT OF TRANSPORTATION

Docket Number: S-13-0099

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Uinta County, the Honorable Dennis L. Sanderson, Judge

Representing Appellant: Dana J. Lent, Attorney at Law, Torrington, Wyoming.

Representing Appellee: Peter K. Michael, Attorney General; Robin Sessions Cooley, Deputy Attorney General; Douglas J. Moench, Senior Assistant Attorney General; Jackson M. Engels, Assistant Attorney General.

Date of Decision: February 4, 2014

Facts: The Department of Transportation disqualified James McCallie from driving commercial vehicles for one year on the basis that he had driven a commercial vehicle with a blood alcohol concentration of 0.04% or greater. After a contested case hearing, the hearing examiner upheld the disqualification. Mr. McCallie challenges the agency’s decision on appeal, claiming generally that the hearing examiner’s findings of fact are unsupported by substantial evidence.

Issues: 1) Were the hearing examiner’s findings of fact regarding probable cause for arrest supported by substantial evidence? 2) Was the order upholding the disqualification of Mr. McCallie’s commercial driver’s license supported by accurate findings of fact and substantial evidence?

Holdings/Conclusion: Our review of the record reveals substantial evidence supporting the hearing examiner’s decision, and we will affirm.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2014 WY 17

Summary of Decision February 4, 2014

Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: TERRY MINER and COLLEEN MINER, Husband and Wife v. JESSE & GRACE, LLC, a Wyoming Close Limited Liability Company, and SNOWY RANGE HOUSING, LLC, f/k/a ZHAO & ZHOU, LLC, a Wyoming Close Limited Liability Company

Docket Number: S-13-0094

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Albany County the Honorable Jeffrey A. Donnell, Judge

Representing Appellant: Dennis C. Cook and Craig C. Cook of Cook and Associates, P.C., Laramie, Wyoming. Argument by Mr. Dennis C. Cook.

Representing Appellee: Kelly Neville Heck and Elisa M. Butler of Brown & Hiser, LLC, Laramie, Wyoming. Argument by Ms. Heck.

Date of Decision: February 4, 2014

Facts: Appellants Terry and Colleen Miner purchased vacant property in Laramie, Wyoming. Shortly thereafter, they discovered that the back of a four-plex apartment building on an adjacent property encroached five feet onto their property, along the length of the apartment building. The Miners brought an action seeking a declaration that they own the encroaching portion of the apartment building and an order requiring that the building be partitioned and that Appellees Jesse & Grace, LLC and Snowy Range Housing, LLC (collectively the LLCs) be ejected from the encroaching portion of the building, or that the encroaching portion of the building be removed. The Miners also requested damages for trespass and an apportionment of rental income earned from the apartment building.

The district court entered partial summary judgment against the Miners on their claim to an ownership interest in the apartment building. Having concluded that the Miners had no ownership interest in the apartment building, the district court denied the Miners’ requests to eject the LLCs from the building, their request to partition the building, and their demand for a proportional share of the apartment building’s rental income. A bench trial was held on the remaining issues, and following that trial, the court ruled that the LLCs were entitled to an implied easement on the Miners’ property to accommodate the apartment building. The court then entered an order granting the LLCs an implied easement on the Miners’ property and enjoining the Miners from interfering with the LLCs’ use of that easement.

Issues: The Miners present the following issues on appeal: I. Whether the district court erred by denying [the Miners’] ejectment and trespass claims to assert ownership of the property underlying 20% of 388 Buchanan and the improvements thereon? II. Whether the district court erred when it interpreted the clear and unambiguous language of [the Miners’] deed to their property and found as a predicate to its determination of an implied easement that the 20% of 388 Buchanan that is located on [the Miners’] property is not an improvement to that property? III. Whether the district court erred by finding that [the LLCs] have an implied easement to occupy [the Miners’] property with their encroaching building and then by enjoining [the Miners’] access to that implied easement on their property? IV. Whether partition of the co-owned building known as 388 Buchanan or whether an injunction to remove the encroaching part of that building from [the Miners’] property is the appropriate remedy in this case?

The LLCs phrase the issues on appeal as: I. The District Court correctly decided that the physical structure of 388 Buchanan belongs to [the LLCs] and as such, [the Miners] are not entitled to recover under their claims for partition and ejectment. II. The District Court correctly decided that [the LLCs] have an implied easement over the portion of [the Miners’] property underlying 388 Buchanan and the requisite setback area.

Holdings/Conclusion: We affirm the district court’s order, and we order a limited remand for the purpose of considering whether a correction is needed, and if so, to make the clerical correction.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]